Image credit: Kudelski Group
Summary: The patent thicket which pervades everything that is used by billions of people, mobile technology in particular, can be traced back to a lot of non-practicing parasites (or patent trolls)
THE MOBILE market is one of the most trolls-infested markets these days. It has been like this for at least half a decade. There is a lot of money at stake and trolls are hoping to grab some of it without lifting a finger.
Never forget that Nokia was a top Linux contributor before Microsoft moved in for the kill and undermined everything Nokia was doing. Nowadays Nokia is acting more like a patent troll and the “Nokia” brand is just being licensed for some small — if not minuscule — level of income.
According to IAM, Nokia’s and Ericsson’s trolling affairs are now somewhat overlapping. To quote:
Huawei’s SEP licensing drive turns into clash of the telecom titans as Ericsson steps in with Nokia
Last week, NSN and T-Mobile – a US subsidiary of Deutsche Telekom – filed five petitions for inter partes review of multiple claims of four SEPs that Huawei asserted against the latter in East Texas in January 2016. The Chinese company claims that it filed these lawsuits after T-Mobile failed to respond satisfactorily to its requests to take a licence for telecoms equipment allegedly infringing on the patents, after first contacting it on the matter back in mid-2014.
In July last year, Huawei followed up its January infringement suits with another East Texas complaint against T-Mobile. This time, it requested that the court issue a declaratory judgment to the effect that it complied with its FRAND obligations in the licensing offers it had made to T-Mobile.
Another factor at play here is the global patent cross-licensing deal Ericsson signed with Huawei at around the same time that the Chinese company initiated its actions against T-Mobile.
Huawei is now the leading Android OEM and the leading OEM in the whole area in general. Samsung, in the mean time (the former leader), is cozying up to a deal with a troll. Only earlier today we wrote about the Kudelski Group, which is becoming a patent troll (it wasn’t historically) and is now being run by one, a thug from Intellectual Ventures. As IAM puts it (it’s portrayed as a partnership rather than a shake-down):
Led by senior vice president Joe Chernesky – a former Intellectual Ventures licensing executive – the Swiss company’s OpenTV subsidiary has engaged in an extensive patent licensing campaign, signing deals with the likes of AOL, Apple, Disney, Google, Netflix, Verizon and Yahoo over the past couple of years; while just this week, OpenTV filed another lawsuit in the Eastern District of Texas against NFL Enterprises, the commercial arm of American football’s National Football League, alleging patent infringement. In August last year, it signed a licensing agreement with RPX, in return for an upfront payment and a future transfer of patents from the defensive aggregator.
Kudelski has made a big name for itself in the patent and technology licensing space – and having a strong relationship with it could prove especially beneficial for Samsung, if and when it begins to mine more value from its own IP portfolio.
Notice the role of RPX in there.
Why are so many firms out there trying to make income out of patents rather than actual products? BlackBerry too has begun doing such stuff, resorting to litigation in Texas. Legislation alone can put a stop to it.
“Qualcomm is one of the worst patent troll[s],” Benjamin Henrion wrote about this news regarding Qualcomm:
Qualcomm’s Alleged “No License, No Chips” Policy Gets it into Trouble with the FTC
Qualcomm is the leader in baseband processors used for cellular communications in smartphones and other products, and one way the company has become a leader is by leveraging its patents, by either forcing customer to first “purchase a license to standard-essential patents, including elevated royalties that the customer must pay when using a competitor’s processor”, “refusing to license its cellular standard-essential patents to competitors”, or “entering exclusivity dealing arrangements” with companies such as Apple. At least that’s according to a complaint brought by the Federal Trade Commission (FTC) in the US that accuses Qualcomm of maintaining a monopoly and using unfair methods of competition, violating the company’s commitment to license on a FRAND (fair, reasonable and non-discriminatory) basis .
Here is the latest from Florian Müller about this subject:
FTC sues Qualcomm over antitrust violation; Apple may buy baseband chipsets from other suppliers
I’m not surprised that Qualcomm’s stock is tanking. This antitrust action is huge. Basically, what the FTC is saying is that Qualcomm is leveraging its monopolies (some in the form of patent rights and others due to the market position of its baseband processors) in ways that enable it to charge several times more for its standard-essential wireless patents than market prices and that its “no license-no chips” policy threatens to force the last remaining competitors, such as Intel, out of the market.
In other, lesser-covered news, Apple has been sued again for patent infringement. “The complaint filed by Seatoun Media,” says a site for lawyers, “centers around a patent entitled “Point to point voice message processor, method and recording/playback device,” this patent describes a “voice message processor” which can send messages between users of the POS system.”
It’s becoming increasingly hard to compete in the mobile market without a heap of patents. What it means is higher price (artificially inflated) of phones. █
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Summary: An overview of some very recent news regarding the highest court in the United States, which has been dealing with cases that can determine the fate of Free/Open Source software in an age of patent uncertainty and patent thickets surrounding mobility
SEVERAL days ago we became aware of “Apple’s motion for a permanent injunction against Samsung for infringing upon three software patents.”
This has been covered by quite a few Apple-leaning sites and mainstream news sites, e.g. [1, 2, 3, 4]. This article by Dennis Crouch of Patently-O said:
In a one-paragraph order, the Federal Circuit has vacated its prior design patent damages determination in Samsung v. Apple following the Supreme Court’s 2016 reversal. The appeal is reinstated, and new briefs will now be filed. (Federal Circuit Docket No. 14-1335).
Apple’s design patents cover various ornamental designs applied to the iPhone and infringing Samsung Galaxy devices. Samsung was found to infringe because it “sells … [an] article of manufacture to which such design … has been applied.” 35 U.S.C. 289. The statute calls for for the infringer to be “liable to the owner [of the patent] to the extent of his total profits.” In its original decision, the Federal Circuit held that “total profits” referred to Samsung’s total profits on its infringing phones – i.e., total profits associated with the article of manufacture to which the design has been applied.
The US Supreme Court was recently mentioned in relation to other cases. It will take on patents of reasonably large companies. “Today,” Patently-O wrote last week, “the Supreme Court granted certiorari in two dueling petitions involving the Federal Circuit’s 2015 interpretation of the Biologics Price Competition and Innovation Act of 2009.”
This was also covered by Natalie Rahhal in New York. She said that the “dispute between Amgen and Sandoz over aspects of the so-called patent dance outlined in the Biologics Price Competition and Innovation Act was granted cert by the US Supreme Court” (SCOTUS).
“If patents are supposed to be in the interest of the public, then why deny ill people access to treatment which they can afford?”Writing from New York, again in relation to a SCOTUS, “Natalie Rahhal analyses the arguments of the amicus briefs filed in Lee v Tam, ahead of oral arguments in the case involving disparaging trade marks at the US Supreme Court on January 18,” according to this from MIP. This is not about patents, but the oral argument is imminent (2 days from now).
Looking outside the US for high-profile cases, there is also this case of Fujifilm v AbbVie (UK), which several sites have covered this month [1, 2] because “[g]eneric companies can seek court declarations that their own products are old or obvious in patent law terms under certain circumstances, the England & Wales Court of Appeal has ruled,” to quote MIP.
In Canada, the Supreme Court might soon hear this case where AstraZeneca is attempting to block generics. To quote MIP again: “The court on November heard arguments in AstraZeneca Canada v Apotex. The case involves AstraZeneca Canada’s patent for Nexium (Esomeprazole), a pharmaceutical product used to treat gastroesophageal reflux disease. AstraZeneca attempted to block Apotex from bringing a generic drug to the market. The Federal Court found that the promised utility of Nexium had not been adequately proven at the time of filing. AstaZeneca appealed to the Supreme Court.”
“2017 promises to be rather interesting, especially because later this week Trump gets inaugurated and he can thereafter cause a lot of damage to patent reform.”Suffice to say, we support generic medicine. If patents are supposed to be in the interest of the public, then why deny ill people access to treatment which they can afford?
2017 promises to be rather interesting, especially because later this week Trump gets inaugurated and he can thereafter cause a lot of damage to patent reform. His policies and appointments tend to serve the richest people, not ill and poor people. █
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When so-called ‘cross-licensing’ with patent purchases (the latest Microsoft method) is actually a disguise/cover for patent settlement after extortion [1, 2, 3, 4]
Summary: The patent lust at IBM, which is suing if not just shaking down companies using software patents, earns plenty of puff pieces from the corporate media
THE notion that the greater the number of patents, the better — a notion so ludicrous that also fails to recognise the raison d’être of patents — is quite a disease. Some people would have us believe that because China created a patents production line in SIPO it's actually at a position of advantage. It’s false and it’s rather infantile to repeat such claims.
One new article, seemingly from an author who is not a fan of software patents (see the short part about it), says today that:
The best ratios I found (i.e., most patents per person) were in very rich Bedford, adjoining Manchester, and almost-as-rich Hollis, adjoining Nashua. Each town had slightly more than 2.7 patents per 1,000 people.
So keep that in mind when you hear people pointing to patent numbers as a reflection of the braininess of a community, state or country or a company or industry. Take it with a grain of salt.
It’s often just a reflection of which companies are based around that area. But some towns take it out of context and equate patents with innovation or wisdom. The above article came just shortly after a heap of IBM puff pieces. IBM, as our readers are probably aware of by now, bets its future and the whole farm — so to speak — on being more like a patent troll (patent enforcement and shakedown). It has already done that to Twitter, a much smaller company, and it keeps doing that to other Internet companies. “IBM scores a record 8,000 patents in 2016,” enthusiastically screams this headline from Dean Takahashi (or his editor), who just repeated the ‘official’ story as follows:
IBM has proven it is once again dominant in earning patents, as it closed the year with 8,088 U.S. patents granted to its investors in 2016. That’s the 24th consecutive year that the company has earned the most patents of any company.
The second-ranked company, Samsung, had 5,518 U.S. patents granted. About 2,700 of IBM’s 2016 patents covered inventions related to artificial intelligence, cognitive computing, and cloud computing. The patents covered a diverse range of technologies that also included cybersecurity and cognitive health.
We have compiled a list of nearly 20 ‘news’ articles [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17] about IBM claiming 8,000 so-called ‘inventions’ in a single year. Almost all these articles are from yesterday and they add no new information; they’re puff pieces void of any analysis. IBM got many of these patents probably by just calling old stuff “cloud” and “AI” (buzzwords). Is “AI” the new “on a machine”? And “cloud” the new “over the Internet”? When it comes to bamboozling patent examiners (so as to be granted software patents) there are all sorts of tricks, many of which boil down to semantics. IBM is nowadays firing a lot of employees, selling large portions of its physical products divisions to China (notably Lenovo). Is this the future of IBM then? Just ‘hiring’ patents, which it already uses to attack and extort far smaller companies? “Samsung Second & Google Fifth In 2016 Patent Race”, an Android news site said yesterday, so IBM isn’t alone among Linux-oriented firms when it comes to the patents gold rush. Samsung and Google, however, are not patent aggressors. Unlike the above IBM puff pieces, a writer in Fortune published “These Firms Won the Most Patents in 2016″ — a list that shows Microsoft falling down quite sharply. As a Microsoft propaganda site puts it, “Microsoft ranked 8th on the list of companies awarded with most patents in the US” (a lot lower than before).
Well, Microsoft is having issues. Software patents are getting more difficult to get, so it is not managing to keep up with patent filings. Financial issues are not helping either. In the coming years we expect IBM to become more and more like a patent troll whose actual products (if not jobs too) sailed away to China. █
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Scientists as judges, not just as pressured (from above) examiners
David Ruschke’s ‘official’ photo
Summary: The Patent Trial and Appeal Board (PTAB), led by David Ruschke, continues to function as another ‘layer’ that ensures patent quality by weeding out bad patents and here are some of the latest cases
THE patents and litigation climate is rapidly changing in the US. It’s not just about software patents, but it has a lot to do with them as a lot of litigation emanates from such patents, notably troll litigation.
Just before the days of the holiday (whichever one) we learned about the Patent Trial and Appeal Board (PTAB), which is responsible for invalidating many software patents, being in the midst of this battle:
The Patent Trial and Appeal Board announced on Dec. 2 that it would uphold a patent filed by Securus Technologies, and that the challenge filed by rival company Global Tel*Link (GTL) was invalid. GTL maintains, however, that Securus only won a partial victory.
The patent (U. S. Patent No. 7,494,061 B2) that Securus maintains held up to the challenge from GTL, relates to biometric identity verification monitoring devices used in correctional facilities. According to a summary of the patent, “The term “biometrics” refers to technologies that measure and analyze human characteristics for authentication.”
This patent is a software patent by the sound of it. These are actually the sorts of patents which improperly use terms like “biometrics” to sound as though they’re anything but image analysis, which is my field of research (post-doctoral). It has nothing to do with biology and it’s all typically reducible to mathematics (matrices). Does the appeal board (PTAB) realise this? If not, maybe it’s time to reassess.
Another report, last Updated 6 days ago, is an article about appeals in Korea, published by Jay (Young-June) Yang, Duck Soon CHANG and Seung-Chan EOM from Kim & Chang (patent microcosm). Remember that Korea still blocks software patents (as it should) and we commend this decision, which guards software giants (also hardware giants, not to mention military equipment players) like Samsung and LG — both of which became Microsoft prey for using Linux nearly 9 years ago. We last reported on this 3 months ago (Microsoft wants more 'Linux patent tax' in Korea).
Going back to PTAB, there is a CAFC/PTAB case (CAFC having the authority to object) that MIP explained as follows: “The original Federal Circuit panel decision in the case – written by Judge Reyna and joined by Chief Judge Prost and Judge Stark – was issued on May 25. The court affirmed the Board’s denial of Aqua’s motion to substitute claims 22–24 of a patent concerning automated swimming pool cleaners.”
There is a 9-page PDF in there. As mentioned here some days ago, they are complaining because their patent was granted in error and now they want to change it. Imagine if granted patents were something dynamic you could just amend, edit, expand etc. as you go alone. What a ludicrous thing. Invalidate the patent and if they insist it’s not fair, then they should apply for the patent again (with amended claims).
MIP also explains how to use PTAB to squash bad patents (like software patents) even when it’s not so trivial. “Jim Brogan, Brian Eutermoser and Janna Fischer discuss the ways that the unsuccessful IPR petitioner at the Patent Trial and Appeal Board still can challenge validity in subsequent district court litigation,” MIP wrote.
MIP, to its credit, keeps abreast of PTAB cases (mostly because of Mr. Michael Loney), although it sometimes misinterprets the numbers it puts forth.
In better news about PTAB, here is PTAB having a go at software patents and getting a chance to kill them again. As PatentDocs put it:
Petitioner, iVenture Card Traveler Ltd, filed a Petition seeking to institute a covered business method patent review of all claims of U.S. Patent No. 7,765,128, owned by Smart Destinations, Inc. The Board, applying the standard that requires demonstration that more likely than not Petitioner would prevail with respect to at least one challenged claim, the Board granted Petitioner’s request to institute the CBM review.
We hope that PTAB will continue to do its job improving patent certainty by knocking out a lot of rubbish patents, leaving in tact only those that merit court cases (if any). █
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Summary: A $399 million judgment against Android devices from Samsung, with potential implications for other Android OEMs, is rejected by SCOTUS
Excellent news came through AP several hours ago: “Supreme Court throws out $399 million judgment against Samsung in company’s patent dispute with Apple over iPhone design.”
There will certainly be plenty of coverage about this, including quite a lot of rants from Apple advocacy sites. Apple lost a design/UI patent case. It has actually lost quite a few cases against Samsung by now. Many other patents in this domain will be generally lost too, by means of precedence (how many patents out there are no longer valid?).
Here is what Professor Crouch, who followed this case pretty closely, had to say:
In a unanimous opinion authored by Justice Sotomayor, the Supreme Court has reversed the Federal Circuit in this important design patent damages case. Although the case offers hope for Samsung and others adjudged of infringing design patents, it offers no clarity as to the rule of law.
There is also this bit of news that’s covered a week late and says:
Apple v. Ameranth: Federal Circuit Partially Reverses PTAB and Finds All Claims for Electronic Menus Unpatentable
On November 29, 2016, in Apple Inc. v. Ameranth, Inc. 15-1703, the Federal Circuit affirmed the Patent Trial and Appeal Board (PTAB) findings of unpatentable independent claims in a Covered Business Method (CBM) review and reversed findings of patentable dependent claims under 35 U.S.C. § 101. On appeal, the Federal Circuit agreed with Apple that there was sufficient evidence to support the finding that dependent claims 3, 6-9, 11 and 13-16 of Ameranth’s U.S. Patent No. 6,982,733 (‘733 patent) were unpatentable as describing insignificant post-solution activities. Despite Ameranth arguing for a substantial evidence standard of review, the Federal Circuit applied a de novo review standard in its reversal of the PTAB’s decision.
Things don’t look too promising for Apple in this CAFC case and another CAFC case, Ameranth, Inc. v. Agilsys, Inc., now gets covered in another site (it’s about PTAB). █
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Witness those truly innovative things — the work of pure genius! — which are rounded corners!
Summary: A quick roundup of recent articles/reports/analyses about Apple v Samsung, including the impending Supreme Court (SCOTUS) case
APPLE’S longstanding patent war with Samsung (or Android, having started to attack it more than 6 years ago) has become a high profile story and probably the leading example of patent litigation in recent times, with a lot of money at stake.
As expected, patent lawyers go ahead and push forth their fairly tales about patents being surrogates for “innovation” (the 1%’s protectionism), this time in relation to Apple and Samsung. To quote Patent Lawyer Magazine:
The recent and numerous cases opposing companies like Apple and Samsung or Google and Oracle highlight that, today, patents are defensive weapons as well as offensive weapons according to the strategy developed by the holder. Many companies notice lately this functional ambivalence of the patent, just as a patent-related dispute happen, like its violation by a counterfeiter party who reproduces without any authorization the protected invention.
If adopting a strategy of patent application may appear expensive in front of the strategy of the secret which consists in keeping the invention undisclosed, it must be clear that the patents ensure an effective legal protection of the inventions against potential counterfeiters and also permit to the innovative companies recouping their Research & Development costs as a patent owner will be able to negotiate royalties for license agreements signed with firms interested in the use of the patented technology.
That’s a rather misleading framing. If one actually considers which patents Apple is suing with/over, then one hasn’t any doubts; it’s not about innovation at all. Maybe it’s about “first to file” or something along those lines. We have covered these patents many times over the years.
As should become apparent pretty soon — because certainly corporate media will be all over it — Apple’s patent war against Samsung will be discussed at SCOTUS, with design patenting as a whole coming under scrutiny. Here is an overview of some more cases to be discussed by SCOTUS:
Constitutional Challenge to Inter Partes Review: Although the Constitutional issues in Cooper v. Lee and MCM v. HP were law-professor-interesting, they were not substantial enough for certiorari. The Supreme Court has now denied the Cooper and MCM petitions — leaving the IPR regime unchanged. Although Cooper v. Square is still pending, its chances are slight. The Supreme Court has also denied certiorari in Encyclopaedia Britannica (malpractice), Gnosis (appellate review), and GeoTag (case-or-controversy).
A new 101 Challenge: In its first conference of the term, the Supreme Court denied all of the pending petitions regarding patent eligibility. However, Trading Technologies has filed a new petition asking whether a new card game is categorically unpatentable so long as it uses a standard deck (rather than a novel deck) of cards. My post on the case asks: Does the Patent Statute Cabin-in the Abstract Idea Exception? That question references Section 100 of the Patent Act that expressly allows for the patenting of new use of a known manufacture.
Extra Territoriality of Trade Secrecy Law: On the trade secrecy front, Sino Legend has petitioned to review the Federal Circuit’s affirmance of the International Trade Commision’s ban on Legend’s importation of rubber resins used for tire production. The underlying bad-act was a trade secret misappropriation that occurred in China and the question on appeal asks: Whether Section 337(a)(1)(A) permits the ITC to adjudicate claims regarding trade secret misappropriation alleged to have occurred outside the United States. A Chinese court looked at the same case and found no misappropriation.
Design Patent Damages: Oral arguments were held earlier this week in Samsung v. Apple. During the arguments, all parties agreed that (1) the statute does not allow for apportionment of damages but rather requires profit disgorgement; (2) the article-of-manufacture from which profits can be calculated may be a component of the product sold to consumers; and (3) the determination of what counts as the article-of-manufacture is a question of fact to be determined by the jury. The only dispute then was on the factors that a jury should be considered and when the “inside gears” of a product should ever be included in the calculation.
The fourth paragraph is about Apple (design patents, not software patents) and the second paragraph speaks of a Section 101 challenge, which isn’t yet likely to happen. Alice is likely to stay here for a long time to come. The focus of the above cases, or the framing that Patently-O has chosen, is ITC. The I in ITC stands for “international” — surely a misleading label. It’s like calling the KGB “international” because it goes (or went) abroad in order to get its way for its home country. The ITC is to US corporations what the FSB is to Russia’s government (or the Kremlin) and we should recognise that there’s nothing “international” about it. It’s not the UN. Now that the patent battles target Asian companies like Samsung IAM likes to obsess about the subject. This patent trolls-funded site wishes us to believe that patent tax that makes phones worse (removed features to avert risk of lawsuits) and more expensive is a desirable aspect. Phones from Samsung almost literally explode and all that IAM can think about is patents, patents, and more patents.
Over at MIP there has been more coverage of the above patent case of Apple v Samsung. Florian Müller foresees more action in this domain (not involving only design patents but much more).
Little attention is being paid to Apple’s practices or tradition of tax evasion with patents as a financial instrument. It continues to happen in Ireland where Apple has a notorious tax-dodging operation and pro-Apple sites touch on the subject yet don’t quite get to the bottom of it (“Apple Moves $9B Worth of iTunes Intellectual Property To Ireland”). Remember what we wrote about Patent Boxes earlier this year.
Joseph Robinson & Robert Schaffer (over at Watchtroll) write about a related case (a different Apple v Samsung). It is apparent that this site is growingly concerned about yet another case reaffirming the death of software patents in the US. Apple has more than one case against Samsung; there are software patents at stake as well, hence the relevance to us. Watchtroll is still opposing patent reform and uses the terminology of anonymous Twitter accounts that taunt us, e.g. “Efficient Infringement”. What a cesspool Watchtroll has become…
Going back to Müller, here is what he recently wrote about both Apple v Samsung cases that are high profile:
Was it just a coincidence that the Federal Circuit made a decision on an Apple petition for a rehearing about eight months after the original decision and just days before the design patents hearing in the top U.S. court? It may very well have been. But when there are already other oddities (such as the decision not to invite further briefing from the parties and hold a rehearing), it’s not impossible that there is a hidden message or agenda.
The Federal Circuit decision certainly gives Apple leverage. Limited leverage, though: the relatively most valuable one of the three patents on which Apple had prevailed at the spring 2014 trial has expired and the most iconic one, slide-to-unlock, is about as valuable in the age of Touch ID and comparable technologies as an ISDN or floppy disk patent.
“Experts Urge Supreme Court To Take A Bite Out Of Apple’s Patent Win Over Samsung,” said this recent report, stating: “As two of the world’s largest consumer electronics companies face off at the Supreme Court Tuesday, experts in legal, patent, technology and consumer advocacy fields are urging the Supreme Court to overturn a ruling in the smartphone war between Apple and Samsung that awarded the iPhone maker the total profit of patent-infringing Galaxy devices.”
Matt Levy wrote about this also [1, 2]. That was 2.5 weeks ago when he pulished some thoughts about “A Funny Thing [That] Happened on the Way to the Court” and to quote:
A funny thing happened on the way to the Supreme Court in yesterday’s Samsung v. Apple design patent dispute. The high court was expected to review the lower court’s award of the entire profits made for 11 different smartphone models — just under $400 million.
Unexpectedly, some time before the argument Apple had agreed to concede that the “article of manufacture” didn’t have to be the entire product sold. That is, Apple agreed with Samsung and the government that the answer to the question that the Court had agreed to decide is “Yes.”
Will design patents not be challenged even by Samsung after all? IAM (wshfully) thinks there may be alignment on the horizon. To quote: “For the last couple of years it has been apparent that the smartphone wars that have raged in US courts since 2009 have been reaching their final skirmishes. Peace deals between the likes of Microsoft and Google and Apple and Google, have brought many of the battles to an end. Except, that is, for what has probably been the most significant confrontation – Apple v Samsung.”
There’s no “Microsoft and Google” “peace deal”; Microsoft continues to attack Android OEMs with patents and it was Microsoft that initiated antitrust action against Android in Europe. Microsoft is a malicious firm that would lie to anyone, anytime.
Joe Mullin asked: “How much punishment is appropriate when it comes to design patents?”
MIP’s coverage at the time spoke of the arguments and Patently-O offered a “view from inside the courtroom”. It said:
At oral argument, Samsung informed the Court that it was dropping its “causation argument” (i.e., that § 289 must be read in light of background causation principles from general tort law) and wanted to focus on its “article of manufacture” argument (i.e., its argument that a successful design patentee should be entitled to the “total profit” from the “article of manufacture” but that the relevant article should be determined mainly by looking at whether the patent claims a whole design or only part).
We eagerly await rulings against Apple in both cases, one involving software patents and another design patents, which in this case closely resemble software patents in multiple ways/aspects. What’s at stake here isn’t just the price of Samsung phones but the financial viability of Android (Linux-based) phones in general. █
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Summary: Microsoft-connected patent trolls like Larry Horn’s MobileMedia are still attacking Microsoft rivals and Microsoft wants more money from Korea, after it attacked Linux with software patents over there (notably Samsung and LG)
“US Pat RE39231,” wrote a patent attorney, eventually meant that “Apple Must Pat MobileMedia $3M for Infringing this Patent” (MobileMedia is not as real company and we wrote about it before, in relation to MPEG-LA and Larry Horn; we wrote about him in [1, 2]).
How many people out there know that MPEG-LA is a patent troll whose head himself is/was a patent troll? Not many people know this. Horn relies on dishonest lawyers from Proskauer Rose and sues Apple, which itself is part of MPEG-LA (we already took note of how bizarre this is).
Well, “Apple loses ringtone infringement case to Nokia and Sony’s patent troll firm,” according to the headline of this report. To quote: “Apple has been ordered to pony up $3 million in damages by a Delaware judge for infringing the patent of a firm partially owned by Sony and Nokia. The case, which has been running since way back in 2010, saw MobileMedia Ideas originally accuse Apple on 16 counts of patent infringement. Six years and plenty of court activity later, the original claim has been whittled down to just one patent pertaining to iPhone ringer alerts, for which MobileMedia has been awarded a tidy sum of money.”
A patent troll connected to Nokia — a legacy of Microsoft entryism and subsequent passage of patents to trolls like MOSAID — is somewhat of a pattern we’ve seen a lot of recently. Android too is being targeted by these trolls.
“MobileMedia Ideas just won a Delaware trial against Apple over a former Sony patent,” Florian Müller wrote about it. “May file further lawsuit now over iPhone 4S and later.”
Tom O’Reilly from Mobile Media Ideas is advertising for this patent troll. He passed around the press release “MobileMedia Ideas Wins Trial against Apple” and it said:
(CHEVY CHASE, MD, US – 21 September 2016) – MobileMedia Ideas LLC is pleased to announce that the US District Court for the District of Delaware today found MobileMedia Ideas’ “polite-ignore” patent (Re 39,231) for mobile phone call silencing valid and infringed by the iPhone 3G, 3GS and 4 and awarded $3M in damages. The case did not include the iPhone 4S, 5/5C/5S and 6/6 Plus on which there may be further proceedings. The patent was filed in 1994 by Sony Corporation, a pioneer in the development of mobile and other consumer electronics technology, and is now part of the patent portfolio licensed by MobileMedia Ideas.
MobileMedia Ideas President and CEO Larry Horn said, “We thank the jury for its service and hard work. This case could have been avoided by the taking of a license, however. MobileMedia Ideas’ business model is based on offering reasonable licenses to a valuable portfolio of important inventions widely practiced across a broad array of mobile phone and other portable products. We still welcome Apple to respect intellectual property developed by others with the taking of a license.”
MobileMedia Ideas was represented by a team of litigators at Proskauer Rose led by Steve Bauer and Kim Mottley of the Boston office.
In relation to an article/report mentioned here earlier this week, there is now an important update. Coming from the Korea Times, it says that the tax authority is likely to reject Microsoft’s appeal for refund of tax. To quote the opening parts:
The South Korean tax authority is expected to reject an appeal by U.S. software giant Microsoft Corp. to refund 634 billion won ($575.7 million) in a withholding tax, according to the tax authority and industry sources Thursday.
Microsoft filed complaints last month against the National Tax Service (NTS), seeking a refund of the withholding taxes paid by Samsung Electronics Co. to the NTS for using the software giant’s patents.
When will Microsoft pay the tax it has evaded? Above the law, still? A lot of the above sum comes from Linux-powered devices (we wrote about this many times before).
Those who believe that Microsoft has changed surely aren’t paying attention to what it does through patent trolls, through Nokia (which Microsoft demanded should pass patents to trolls), and in various distant countries like Korea. Microsoft just became a little more covert in its war against Linux. █
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Quality of patents causes markets to prosper or contrariwise perish
Giving aggressors like Microsoft sacks of patents to breed Mafia-like behaviour, not healthy competition
Summary: Revisiting the EPO’s vision of poor patent examination and the effect of discriminatory granting practices, favouring patent bullies such as Microsoft (which actively attacks Linux using low-quality and usually pure software patents)
“A skilled patent attorney working with a qualified searcher could cobble together a colorable obviousness argument against the vast majority of issued patent claims,” says a new article from Patently-O. Not to mention “abstract” criteria, prior art and so on. “Part of the difficulty for patentees,” continues the article, “stem from the the billions of prior art references available via increasingly effective search tools. Even when an invention results from a ‘flash of genius,’ patent law typically back-fills extensive knowledge for the obviousness analysis – even when that knowledge was not actually available at the time of the invention. The larger difficulty though is likely the large number of hard-to-pin-down facts such as the motivations, common sense, and level of creativity of a person having ordinary skill in the art.”
“In the case of large companies like Microsoft, mountains of patents (granted in bulk by the EPO]) can be used to compel companies to pay up without even a trial.”If the EPO replaces examiners with algorithms, things will exacerbate further and patents get granted incorrectly, leading to an ocean of frivolous lawsuits. In the case of large companies like Microsoft, mountains of patents (granted in bulk by the EPO) can be used to compel companies to pay up without even a trial. Recall the Microsoft v TomTom case. Picking on small companies is Microsoft’s thing; it doesn’t sue Google.
The above reminds us of the danger of poor patent quality as well as streamlining grants, which is what Battistelli’s EPO has in effect done for Microsoft (and evidence we showed for that led to legal threats from the EPO). They — like the USPTO — in effect facilitate patent racketeering by Microsoft.
“They — like the USPTO — in effect facilitate patent racketeering by Microsoft.”Watch this new article titled “Primetime: Microsoft’s Android Cross Patent Dealings”. That’s misleading because it's not cross-licensing, it's a patent settlement (in bundling form) and it’s essentially a patent shakedown without even a trial and without an opportunity to properly assess the quality (and thus in/validity) of patents. The article says that “to press on this advantage, Microsoft does need to sign into more cross licensing or similar patent deals with manufacturers. Given Microsoft’s patent portfolio and how useful this will be to those manufacturers wishing to break into the North American market, such as Xiaomi, we may be seeing more of these arrangements in the coming months. The alternative might be Microsoft suing any manufacturer that tries to sell devices into a patent-friendly market.”
But again, these are not cross-licensing deals, these are patent shakedowns. One might even call this extortion or racketeering, even though Microsoft is too well-connected to face court charges brought forth by the government.
It is worth noting that many of Microsoft’s patents — those which it uses to shake down Android players (OEMs) — are not even valid anymore (if properly scrutinised), but there are so many of them that it would cost a fortune to demonstrate it to the court. It’s a numbers game, quantity rather than quality. It’s cheaper to just settle and let Microsoft continue to wield software patents like a weapon, even post-Alice. PTAB cannot take a request to review hundreds of patents from just one single company because it’s already overburdened by a growing number of reviews (IPRs).
Speaking of patent aggressors, there is this new software patent from Facebook (the usual, see our Facebook wiki page). These are oftentimes surveillance patents, but this time is’s about languages, at a time of increased competition with Google. Facebook's growing stockpile of patents is a real problem (Facebook has a history of going aggressive with them) and The Next Web says that “the US patent office issued 6,789 patents. Each patent adds a little something new to the human knowledge base. As we cannot list all six thousand, the PatentYogi team has selected the five most interesting patents.” How many of these are software patents that oughtn’t have been granted? How many of these will be toothless some time in the near future?
Patently-O says “The number of pending Ex Parte appeals continue to drop. Great work PTO.” There are other statistics of interest, based on PDFs from the USPTO (like this one). Patently-O claims they suggest that: “Design patent applications expected to reach 40,000 for FY2016 – up from under 30,000 in FY2010. The PTO is working to improve design patent prosecution speed – current wait of more than a year for a first office action.”
Well, the Office may have granted 40,000 patents on designs, but once reassessed the Office may need to throw them all away, on a per-request basis (post-Apple v Samsung at SCOTUS). Granting again for the sake of granting? Until the next Alice happens?
Patent quality control is the principal pillar of true and potent patent offices, otherwise they would be just archives of untested claims (a registration/filing system). █
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